Louis Brandeis and William Brennan — who probably thought as deeply about law and society as any two 20th century Americans — both regarded the states as our "laboratories of democracy." If they were to revisit that famous concept today, they'd almost surely have to conclude that many states' distinctive experiments in social progress are being frustrated by the contamination of outside pathogens.
Take, for example, the case of Iowa, where a little more than a year ago, a unanimous state Supreme Court recognized the right to marriage equality. This November, three of the court's seven justices will appear on the ballot, and Iowans will have a chance to vote on whether they should retain their seats. The state's judges are appointed by the governor, but voters get a chance to approve the selection within 12 months and every eight years subsequently. In the half-century since Iowa adopted the so-called merit selection system, no justice of the Supreme Court has been voted off the bench.
Now that may change because national organizations affiliated with the religious right are funding and directing a campaign to unseat the three justices, two of whom were appointed by then-Republican Gov. Terry Branstad, as was the opinion's author, Justice Mark Cady. That hasn't kept a variety of GOP presidential hopefuls from weighing in against the justices. Nor has it dissuaded the National Organization for Marriage and the Tupelo, Miss.-based American Family Association — traditional Republican allies — from pouring in money to defeat them.
In part, they fear the success of Iowa's democratic experiment with marriage equality because the state court's ruling so directly addressed the proper role of religious conviction in this question. As Cady wrote for a unanimous court, there is a "religious undercurrent propelling the same-sex marriage debate," but Iowa's "constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring that government avoids them. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all."
Brian S. Brown, president of the National Organization for Marriage, frankly told the New York Times recently that his organization wants to force the Iowa justices off the bench as a lesson to judges in other states. The campaign "sends a powerful message," he said. So much for Iowans' right to manage their own state's constitutional affairs.
California is also familiar with this sort of corrosive intrusion. The campaigns for and against Proposition 8, which overturned the recognition of marriage equality by that state's Supreme Court — and was, in turn, rolled back by a federal court ruling — were the most expensive ever waged anywhere in this country over a social question. Most of the money supporting the measure, particularly in the campaign's crucial early stages, came from outside California.
Now, outside energy interests are providing crucial backing for California's Proposition 23, which wants to gut the state's attempt to take action against the emissions fueling global warming. Two Texas oil refiners — Valero Energy Corp. and Tesoro Corp., both based in San Antonio — already have contributed $4 million and $1.5 million, respectively, to the measure's campaign. An oil refining subsidiary that belongs to Charles and David Koch, neither of whom lives in California, has thrown in an additional $1 million, and they are supporting Republican senatorial candidate Carly Fiorina, who backs Proposition 23. As the Wall Street Journal recently reported, Charles Drevna, president of the National Petrochemical & Refiners Association, sent his members an e-mail soliciting still more contributions: "I am pleading with each of you — for our nation's best interest and for your company's own self-interest."
If these heedless and venal interests are allowed to prevail, American democracy's laboratories soon will be empty shells.
© 2010 Los Angeles Times